Eric Stewart v. Brad Livingston , 615 F. App'x 226 ( 2015 )

Case: 14-20700 Document: 00513188480 Page: 1 Date Filed: 09/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20700 FILED
Summary Calendar
September 10, 2015
Lyle W. Cayce
Clerk
ERIC D. STEWART,
Plaintiff-Appellant,
v.
BRAD LIVINGSTON, Executive Director of Texas Department of Criminal
Justice in his official capacity; THOMAS LEEPER; JUANITA GONZALEZ;
STUART JENKINS; RISSIE L. OWENS; DAVID GUTIERREZ; CONRITH
DAVIS; JACKI DENOYELLES; CHARLES AYCOCK,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:13-CV-1812
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Eric D. Stewart, Texas prisoner # 1209188, appeals the summary
judgment dismissal of his 42 U.S.C. § 1983 lawsuit as time-barred. He argues,
for the first time on appeal, that his suit was timely because it was filed within
two years of exhausting his state remedies. Alternatively, Stewart contends
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-20700 Document: 00513188480 Page: 2 Date Filed: 09/10/2015
No. 14-20700
that he was entitled to an evidentiary hearing to determine the date on which
his cause of action accrued.
These arguments lack merit. The undisputed facts, including the
allegations in the complaint, show that Stewart was made aware of the
imposition of the sex offender conditions, the basis for his lawsuit, when his
most recent parole certificate containing those conditions issued on September
16, 2008. He therefore knew or should have known the facts supporting his
claims on that date, meaning that his cause of action accrued, and the
limitations period began to run, at that time. See Piotrowski v. City of Houston,
237 F.3d 567, 576 (5th Cir. 2001). As the district court determined, the
limitations period expired two years later, on September 16, 2010, and the
instant lawsuit, filed more than three years after the expiration of the
limitations period, is time-barred. See Stanley v. Foster, 464 F.3d 565, 568 (5th
Cir. 2006); TEX. CIV. PRAC & REM. CODE ANN. § 16.003(a).
Stewart presented no summary judgment evidence to support his
conclusory assertion that his lawsuit is timely, and he points to no material
factual dispute which precluded summary judgment. See FED. R. CIV.
P. 56(c)(1). The instant appeal is without arguable merit and is therefore
dismissed as frivolous. See 5th Cir. R. 42.2.
This court’s dismissal of Stewart’s appeal as frivolous counts as a strike
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
385-87 (5th Cir. 1996). Stewart is cautioned that if he accumulates three
strikes under § 1915(g), he will not be able to proceed in forma pauperis in any
civil action or appeal filed while he is incarcerated or detained in any facility,
unless he is under imminent danger of serious physical injury. See § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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